Picking the Supremes: the impact of money, politics, and influence in judicial elections.

• Author: Cosby, Teresa Nesbitt
• Position: II. The Historical Development of Judicial Selection Methods: The Push for Independence C. Beyond Beatty - Other Impacts and Implications through III. Conclusion: When Picking the Supremes Money, Politics, and Influence Will Find Its Way, with appendices and footnotes, p. 113-136

C. Beyond Beatty--Other Impacts and Implications

Aside from who is actually placed in office, election of judicial officials also implicates issues such as separation of powers, delegation of those powers, conflict of interests, lack of diversity on the bench, and cronyism in selection of judicial nominees.

1. Separation of Powers and Voting Rights

   In January of 2010, the League of Women Voters of South Carolina (LWVSC) submitted an amicus brief to the Supreme Court of South Carolina in Segars-Andrews v. Judicial Merit Selection Commission, alleging that the legislative election method of selecting judges violated separation of powers. (342) Segars-Andrews asked the high court to invalidate a decision by the Judicial Merit Selection Committee (JMSC) that found her unqualified to continue to serve because of an ethics violation. (343) The controversy arose in a family court case in which the judge was asked to recuse herself based on a potential conflict of interest. (344) Her refusal to grant the motion became the basis for the decision of the JMSC to refuse to qualify her for another term. (345)

   The LWVSC contended "that the legislature violated the intent of a 1996 constitutional amendment when it stacked a newly formed judicial nominating commission with state lawmakers." (346) In its brief the League argued "that the Legislature improperly qualifies and nominates judges [in addition to] voting on the final appointment"; South Carolina's system allows Legislators to control the JMSC and the ultimate election of candidates for judgeships. LWVSC argues that by controlling both processes the selection process used in South Carolina vests absolute control of judicial elections in the Legislature against the intent of the voters to separate the JMSC nominating process from the legislative election procedures The group warned of a "'lack of a check and balance on the Legislature's power[.]'" (348) The South Carolina Bar Association supported the LWVSC in its petition. The Bar argued that "[t]he aim of the reform-based constitutional amendment and ... enabling legisation was to put a stop to the 'good old boy' system of electing judges[.]" (349) However, the legislation reserved six of the ten committee seats for sitting lawmakers instead of creating an independent, all-citizen review body. (350) Segars-Andrews' suit charged "that the ten-member commision, ... made up of ... sitting state lawmakers, violates the S.C. Constitution because voters never intended [for] the Legislature to control the [JMSC]." (351) In her brief, Segars-Andrews argued that the purpose of S.C. CONST. art. V, [section] 27 was to create an independent body "'whose concurrence was a condition precedent to the General Assembly's selection of a judge.'" (352) Segars-Andrews argued that the JMSC's composition "frustrates the very reason for its creation." (353)

   The court ruled against Segars-Andrews, finding, among other things, that the Legislature has flexibility in crafting implementing statutes and that the case presented a political question. (354) Addressing a similar argument regarding Virginia's system of legislative dominance in judicial selection, J. Amy Dillard, Assistant Professor of Law at the University of Baltimore School of Law, pointed out that "Virginia's judicial appointment scheme does not violate the ... doctrine of separation of powers" found in the United States Constitution because the principle applies only to the federal government. (355) Therefore, the separation of powers concept found in the federal constitution does not bind state governments. (356) The South Carolina Supreme Court's holding ends the legal controversy; however, it did not end the political discussion of whether the Legislature weilds too much influence in selecting judges. In Federalist No. 78, Alexander Hamilton cautioned that "[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution." (357)

2. Delegation

   Another complaint of detractors of South Carolina and Virginia's system is that the Legislature has delegated a legislative power to non-Legislators. (358) The JMSC's purpose, they argue, when measured against the constitutional power given to the Legislature, is an improper delegation of legislative authority. (359) The detractors argue that the South Carolina Constitution delegates the authority to the Legislature to elect judges--not to a screening committee composed of Legislators and lay persons. (360) By not reporting out all qualified judges to allow a vote in the Legislature, the JMSC is actually voting not to elect a qualified judge. (361) Hence, the function of electing judges is determined by a committee of elected persons and non-elected persons. (362) Critics argue that all qualified judges should be reported out, and anyone who has gone through the process and has been found qualified, but has not had their name submitted to the Legislature for consideration, has standing to challenge the structure of the JMSC. (363) The Supreme Court of South Carolina has not ruled directly on this issue and relevant case law is not clear. (364) Therefore, the question remains as to whether SS2-19-10(b) violates the Latin maxim, delegato potestas non potest delegari, "a power once delegated cannot be redelegated." (365)

3. Conflicts

   1. The Supreme Court and the Legislature

   In a study conducted by Daniel Pinello he concluded that the behavior of judges is impacted by the manner in which they are appointed, to wit:

1. Popularly elected judges will prefer the state over the individual and business when those interest clash, but otherwise the individual over business;

2. Gubernatorially appointed judges will prefer business over the individual and the state, but otherwise the individual over the state; and

3. Legislatively selected judges will acquiesce to the preferences of the other branches of government and generally be as inactive as possible with regard to policy initiation. (366)

   The method used to select judges is important in our democratic system of governance. (367) If a presumption exists that judges elected by the Legislature will tend to side with the Legislature, then this effects the appearance of impartiality among the Court. (368) Pinello's theory is echoed in the comments of former South Carolina Governor Mark Sanford. (369) On June 2, 2009, Sanford argued that the South Carolina Supreme Court could not be fair. (370) Sanford was in the middle of a fight with the Legislature to assert his authority to refuse federal stimulus money. (371) Sanford predicted that he would lose the battle in the courts because of the Legislature's role in appointing justices to the South Carolina Supreme Court, which must then decide cases involving an entity that directly funds its justices. (372)

   I think even where the court case ends up underscores in essence good people trapped in a horrible system. We have in this case a Supreme Court that is picked by the General Assembly. They regularly lobby the General Assembly for funding and other things .... You could have five Solomons, but at the end of the day if you had to go to another group to get funded and to give you the goal posts, if you will, for your playing field it would be very, very tough spot in which to operate. (373) Sanford did lose the stimulus suit. (374) South Carolina's current governor, Nikki Haley, received a dose of the same medicine Sanford received when the Legislature challenged her attempt to compel the General Assembly to reconvene in a special session on June 14, 2011, and continue in session no later than July 1, 2011. (375) In a three-two decision the court found in favor of the Legislature and ruled that Governor Haley had violated the separation of powers provision of the South Carolina Constitution. (376) Of course, this is anedoctal evidence that the courts may or may not be biased, but that is not important to this discussion. What is important is the fact that it does matter that the state courts are elected by the Legislature, and that its rulings in support of the Legislature raise doubts about the Court's capacity to remain impartial. (377)

   2. Legislator-Lawyers and the "Scales of Justice"

   An additional problem with this method of selection is a growing concern over lawyer/legislator conflicts of interests. A potential conflict arises when legislator-lawyers appear before judges they have a role in electing. A practicing lawyer complained that it is unfair to have to defend cases against Legislators because the judges give them deference and it puts other clients at a legal disadvantage. (378) An elected South Carolina trial court judge explains that "[a] conflict of interest benefits particular politicians because of their role in electing a particular judge." (379)

   This concern is shared in Virginia because it also relies upon the local delegation to endorse a judge. (380) In Virginia, the local delegation is a group of full-time attorneys who also serve as part-time legislators. (381) In this dual role, many of these attorneys will practice before judges that they helped to place on the bench. (382) This practice raises the same conflict of interest concern expressed by practicing lawyers in South Carolina. (383) "These attorney-legislators have a vested financial interest in maintaining the status quo and putting judges back on the bench regardless of their fitness to serve." (384)

4. Diversity

   The most observable impact of South Carolina's elective system is the lack of diversity on its highest trial court. Representative David Weeks admitted that "[w]e have failed miserably in that regard. She's alright if she wants to be on the Family Court but not the Circuit Court." (385) In the opinion of Ciara Torres-Spelliscy, counsel for the Democracy Program at the Brennan Center for Justice, if the group screening a candidate is diverse, it tends to recommend a diverse pool of applicants. (386) The JMSC is...